Hassim v Bekker and Others (17/46707) [2018] ZAGPJHC 414 (8 June 2018)

Hassim v Bekker and Others (17/46707) [2018] ZAGPJHC 414 (8 June 2018)

The court held that directive 9.8.2.12 does not automatically strike out a defaulting party's claim or defence upon non-compliance with a court order compelling delivery of heads of argument and practice note. The directive is intended to provide a mechanism for compliance and to relieve the court roll of matters not ripe for hearing, but the sanction is not automatic. Instead, the complying party must bring a further application on notice to the defaulting party for the striking out of the claim or defence, and the court retains discretion to grant such an order. The interpretation preferred by the intervening respondents would remove judicial discretion and could result in...

Citation
[2018] ZAGPJHC 414
Parties
Applicant: Rayhaan Hassim; Respondent: Rene Bekker; Respondent: Master of the High Court, Johannesburg; Respondent: Simayia Abdool Gafaar Khammissa N.O.; Respondent: Gert De Wet N.O.; Respondent: Bethuel Billyboy Mahlatsi N.O.; Respondent: Keheditse Desiree Judith Masege N.O.; Respondent: Gurwantria Lazman Bhika N.O.; Respondent: Johan Engelbrecht N.O.; Respondent: Grace Haven Industries (Pty) Ltd and 25 Others
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
8 June 2018
Case Number
17/46707
Procedural Posture
Interlocutory Application / Ruling on Application to Compel Filing of Heads of Argument and Practice Note
Outcome
The order compelling the applicant to file heads of argument and practice note within three days is confirmed. The application to strike out the applicant's claim is postponed sine die, with leave granted to the intervening respondents to supplement their papers if they wish to pursue the striking out application...
Judges
L T Modiba
Legal Topics
Practice Directives, Striking Out, Court Discretion, Non Compliance, Heads of Argument, Contempt of Court
Civil Procedure Practice Directives Striking Out Court Discretion Non Compliance Heads of Argument Contempt of Court

Case Brief

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Parties

Rayhaan Hassim

Applicant

Rene Bekker

Respondent

Master of the High Court, Johannesburg

Respondent

Simayia Abdool Gafaar Khammissa N.O.

Respondent

Gert De Wet N.O.

Respondent

Bethuel Billyboy Mahlatsi N.O.

Respondent

Keheditse Desiree Judith Masege N.O.

Respondent

Gurwantria Lazman Bhika N.O.

Respondent

Johan Engelbrecht N.O.

Respondent

Grace Haven Industries (Pty) Ltd and 25 Others

Respondent

Procedural Posture

Interlocutory Application / Ruling on Application to Compel Filing of Heads of Argument and Practice Note

Legal Issues

  1. 1 Does directive 9.8.2.12 automatically strike out a defaulting party's claim or defence upon non-compliance with a court order?
  2. 2 Is the sanction under directive 9.8.2.12 discretionary or mandatory?
  3. 3 What is the correct procedure for enforcing compliance with practice directives regarding heads of argument and practice notes?

Ratio Decidendi

The court held that directive 9.8.2.12 does not automatically strike out a defaulting party's claim or defence upon non-compliance with a court order compelling delivery of heads of argument and practice note. The directive is intended to provide a mechanism for compliance and to relieve the court roll of matters not ripe for hearing, but the sanction is not automatic. Instead, the complying party must bring a further application on notice to the defaulting party for the striking out of the claim or defence, and the court retains discretion to grant such an order. The interpretation preferred by the intervening respondents would remove judicial discretion and could result in...

Court Disposition

The order compelling the applicant to file heads of argument and practice note within three days is confirmed. The application to strike out the applicant's claim is postponed sine die, with leave granted to the intervening respondents to supplement their papers if they wish to pursue the striking out application...

Orders

  • The order granted on 17 May 2018 is confirmed.
  • Prayer 2 of the notice of motion (application to strike out) is postponed sine die.